Mogilefsky v. Superior Court

• Decision Date: 10 December 1993
• Docket Number: No. B072438,B072438
• Court: California Court of Appeals Court of Appeals
• Parties: , 67 Fair Empl.Prac.Cas. (BNA) 127, 63 Empl. Prac. Dec. P 42,746 Wayne MOGILEFSKY, Petitioner, v. The SUPERIOR COURT, of Los Angeles County, Respondent. SILVER PICTURES et al., Real Parties in Interest.

Page 116

26 Cal.Rptr.2d 116

20 Cal.App.4th 1409, 67 Fair Empl.Prac.Cas. (BNA) 127,

63 Empl. Prac. Dec. P 42,746

Wayne MOGILEFSKY, Petitioner, v. The SUPERIOR COURT, of Los Angeles County, Respondent SILVER PICTURES et al., Real Parties in Interest.

No. B072438.

Court of Appeal, Second District, Division 4, California.

Dec. 10, 1993.

Schonbrun & De Simone, V. James De Simone, Michael D. Seplow, Venice, and Marcia A. Gladson, Los Angeles, for petitioner.

No appearance, for respondent.

Greenberg, Glusker, Fields, Claman & Machtinger, Bertram Fields, Bonnie E. Eskenazi, Patricia A. Millett and Eve H. Wagner, Los Angeles, for real parties in interest Silver Pictures, Warner Bros., and Joel Silver.

Katten, Muchin, Zavis & Weitzman, Howard L. Weitzman and Zia F. Modabber, Los Angeles, for real party in interest Michael Levy.

ARLEIGH M. WOODS, Presiding Justice.

The issue presented in this writ proceeding is whether same gender sexual harassment may be the basis of a cause of action for sexual harassment in violation of the Fair Employment and Housing Act. (Gov.Code, § 12940, subdivision (h).) After review, we answer this question in the affirmative and issue a writ of mandate directing respondent superior court to vacate its orders sustaining, without leave to amend, demurrers to a cause of action alleging such behavior.

FACTS

Petitioner Wayne Mogilefsky alleged in his first amended complaint that he was subjected to sexual harassment and discrimination by Michael Levy, his supervisor, during the course of his employment as creative editor Specifically, petitioner alleged that on two occasions Levy, the President of Silver Pictures, demanded petitioner stay overnight in Levy's hotel suite. On the first occasion, Levy allegedly informed petitioner that he would receive more money if he cooperated, ordered petitioner to play a pornographic film on the VCR, made lewd and lascivious comments about the film, and asked petitioner how much he would charge to perform acts similar to those depicted in the film. The next morning Levy allegedly falsely implied to others that petitioner engaged in anal sex with him. On the second occasion, Levy allegedly referred to petitioner in a profane and degrading manner and inquired repeatedly into petitioner's private life, including questions regarding his prior relationships. Very early the next morning, Levy allegedly woke petitioner, requested him to take his clothes off, and told petitioner that he wanted to sleep next to him.

for real parties in interest Silver Pictures, Warner Brothers and Joel Silver. ¹

Petitioner alleged that he went to Levy's hotel suite the second time only after being informed by others that he had no choice in the matter, that attendance at the suite was mandatory, that another male employee had been fired for not going to Levy's suite when ordered to do so, and that petitioner should consider the consequences before refusing.

These acts were alleged to be violations of the duties imposed upon real parties in interest by California Government Code section 12940, including the prohibitions against discrimination on the basis of gender, asking for sexual favors in return for favorable treatment in the workplace or making any sexual requests with an explicit or implicit quid pro quo consequence in the workplace.

Real parties in interest Silver Pictures, Warner Brothers and Joel Silver generally demurred to the first cause of action citing Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 235 Cal.Rptr. 68, in support of the assertion that sexually suggestive remarks by one male to another with no physical touching did not constitute an unfair employment practice under Government Code section 12940.

Real party in interest Michael Levy filed a separate demurrer to the first cause of action in which he asserted facts contradictory to those alleged in petitioner's complaint and argued that "[e]ven assuming the truth of plaintiff's allegations, plaintiff only alleges incidents of 'sexually explicit jokes, comments and innuendoes [sic],' and the use of 'profane and sexually explicit language.' " These allegations, Levy argued, could not state a cause of action for sexual harassment as a matter of law.

The trial court sustained the demurrers without leave to amend. The minute order reflecting this ruling stated "Not a sex harassment case[.]"

Petitioner filed a motion for reconsideration supported by a proposed second amended complaint which added allegations to the effect that the other named defendants allowed defendant Michael Levy to surround himself with "young, attractive males and employment decisions were made and job duties were assigned on the basis of Levy's attraction to male employees. As such, a hostile environment was created in which males were treated differentially from females and plaintiff alleges that he was discriminated on the basis of his gender." Petitioner's motion for reconsideration was denied.

DISCUSSION

Government Code section 12940 defines eleven unlawful employment practices prohibited by the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), including sexual discrimination, a violation of subdivision (a), ² and sexual harassment, a violation of subdivision (h). ³ There is some overlapping of prohibited practices in these two sections, as recognized by cases holding that sexual harassment is a form of discrimination. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49; Accardi v. Superior Court (1993) 17 Cal.App.4th 1239B, 17 Cal.App.4th 341, 347, 21 Cal.Rptr.2d 292.) The primary distinction between the two is that an employee alleging discrimination in violation of subdivision (a) must allege facts demonstrating that he or she was discriminated against "in compensation or in terms, conditions or privileges of employment" (Gov.Code, § 12940, subd. (a)) whereas an employee alleging discrimination in violation of subdivision (h) need not allege loss of tangible job benefits. (Gov.Code, § 12940, subd. (h).)

Petitioner's cause of action was for sexual harassment in violation of subdivision (h). California case law recognizes two theories upon which sexual harassment may be alleged. The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607, 262 Cal.Rptr. 842.)

Petitioner's first amended complaint invoked both theories by alleging that Levy and one of Levy's employees informed petitioner that he would "receive more money on his writing deal if he came to the hotel suite" (quid pro quo) and by alleging that a hostile, sexually harassing environment existed which disrupted petitioner's "emotional tranquility in the workplace and otherwise interfered with and undermined his personal sense of well being" (hostile environment).

A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee's body and the sexual uses to which it could be put. (Donald Schriver, Inc. v. Fair Employment & Housing Com. (1986) 220 Cal.App.3d 396, 405, 230 Cal.Rptr. 620.) To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances. (See Bihun v. AT & T Information Systems, Inc. (1993) 14 Cal.App.4th 1283A, 13 Cal.App.4th 976, 1005, 16 Cal.Rptr.2d 787.)

By contrast, a cause of action for sexual harassment on a hostile environment theory need not allege any sexual advances whatsoever. (Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 347, 21 Cal.Rptr.2d 292.) A cause of action on this theory is stated where it is alleged that an employer created a hostile environment for an employee because of that employee's sex. (Accardi v. Superior Court, supra, 17 Cal.App.4th at pp. 344, 348, 21 Cal.Rptr.2d 292.) For example, in Accardi, the reviewing court held a cause of action had been stated upon factual allegations that a woman police officer had been subjected to a decade long campaign against her which included threats, rejection, mockery, double standards, and intimidation. (Id. at pp. 349-350, 21 Cal.Rptr.2d 292.)

As might be expected, cases sometimes involve a hybrid of these two theories. A hostile work environment may result from inappropriate sexual conduct in the workplace. Under such circumstances the plaintiff may allege that the unwelcome sexual advances were sufficiently pervasive so as to also alter the conditions of employment and create an abusive work environment. (See Boler v. Superior Court (1987) 201 Cal.App.3d 467, 469, 247 Cal.Rptr. 185; Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 608, 262 Cal.Rptr. 842.)

The only reported California case dealing with alleged sexual harassment by a member of the same sex was alleged as a hostile environment case, but actually involved a hybrid situation. That case is Hart v. National Mortgage & Land Co., supra, 189 Cal.App.3d 1420, 235 Cal.Rptr. 68. There, plaintiff Hart testified in his deposition that he had been subjected to genital grabbing, attempted mounting, sexually suggestive gestures, and crude remarks by a male coemployee named Campbell. Hart described Campbell as a "pervert" and stated that he believed Campbell was "singling him out for this treatment" (189 Cal.App.3d at p. 1424, 235 Cal.Rptr. 68), but that he did not believe Campbell was interested in having sex with him.

The employer's motion for summary judgment was granted on the ground that "Government Code section 12940...